Jencks v. United States

• Citation: 226 F.2d 553
• Decision Date: 01 December 1955
• Docket Number: No. 15557.,15557.
• Parties: Clinton E. JENCKS, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

226 F.2d 553 (1955)

Clinton E. JENCKS, Appellant, v. UNITED STATES of America, Appellee.

No. 15557.

United States Court of Appeals Fifth Circuit.

October 26, 1955.

Rehearing Denied December 1, 1955.

Arthur T. Hannett, Albuquerque, N. M., Edmund B. Elfers, El Paso, Tex., Harry L. Bigbee, Santa Fe, N. M., John T. McTernan, Los Angeles, Cal., for appellant.

Holvey Williams, Asst. U. S. Atty., El Paso, Tex., William F. Tompkins, Asst. Atty. Gen., David H. Harris, Atty., Dept. of Justice, Washington, D. C., Russell B. Wine, U. S. Atty., San Antonio, Tex., Brandon Alvey, Clinton B. D. Brown, Attys., Dept. of Justice, Washington, D. C., for appellee.

Before TUTTLE, CAMERON and JONES, Circuit Judges.

CAMERON, Circuit Judge.

(1) This opinion supplements that filed in the case under No. 15,157, 5 Cir., 226 F.2d 540, wherein the judgment of conviction entered January 21, 1954 was affirmed. On January 28, 1955, while the appeal from that conviction was pending, appellant filed a motion for a new trial based upon newly discovered evidence. The motion for new trial was denied by the court below after an extended hearing, its order being entered March 12, 1955. The motion was based upon the ground that Harvey Matusow, a witness who had testified at the trial, had recanted portions of the testimony he had given and the motion was supported by an affidavit executed by Matusow in New York on January 20, 1955.

At the hearing¹ appellant relied upon the affidavit of Matusow and the oral testimony given by him as appellant's witness. The Government produced and examined ten witnesses along with a large number of exhibits. At the conclusion of the hearing the court below announced that an order would be entered denying the motion, and thereupon called Matusow before it and spoke these words to him:

"* * * after listening attentively to your testimony and the other testimony and proceedings on this motion, I am thoroughly convinced that you are in contempt of this court in that you, alone or in conjunction with others, deliberately and maliciously and designedly schemed to obstruct justice in this court, and in furtherance thereof have caused the filing of the affidavit in this cause and thereby obtained the hearing in this court on the motion for a new trial which has just been concluded. By recanting your former testimony, given in this court, which I believe in substance was true, you have, in my opinion, deliberately, designedly and maliciously attempted to obstruct the justice of this court * * * I am convinced from your actions, conduct and testimony had and done in my presence during this hearing, that you have deliberately and maliciously obstructed the justice of this court and contempted this court for the purpose of furthering your personal gains. * * *" (Emphasis supplied.)

From this statement and from the record as a whole it is manifest that the trial judge, who had sat also through the main trial, was convinced that the testimony given by Matusow at the trial was substantially true and that the testimony given on the hearing of the motion for new trial was corruptly false. The question before us is whether we should set aside those findings.

(2) Recent decisions of the Supreme Court and of this court furnish a clear blue print of the law which shall guide us in passing upon this motion. In United States v. Johnson² the Supreme Court granted certiorari to the Court of Appeals for the Seventh Circuit, "Since we think it important for the orderly administration of criminal justice that findings on conflicting evidence by trial courts on motions for new trial based on newly discovered evidence remain undisturbed except for most extraordinary circumstances * * *".

The Court of Appeals³ had first affirmed the District Court's action in that case in overruling a motion for new trial based on newly discovered evidence and later⁴ had reversed the order of the District Court overruling an amended motion based upon additional evidence that the chief prosecuting witness had committed perjury.⁵ The Supreme Court felt that the case before the Court of Appeals was so lacking in merit that the appeal should have been dismissed: 327 U.S. at pages 111-113, 66 S.Ct. at page 466.

"The crucial question before the trial court was one of fact: Did the new evidence show that Goldstein\'s original testimony was false. The trial judge after carefully studying all the evidence found that there was nothing to show perjury on the part of Goldstein, that Goldstein had in fact told the truth, and concluded that a new trial was not warranted. The trial court thus answered the above question in the negative. * * * But it is not the province of this Court or the Circuit Court of Appeals to review orders granting or denying motions for a new trial when such review is sought on the alleged ground that the trial court made erroneous findings of fact citing cases. While the appellate court might intervene when the findings of fact are wholly unsupported by evidence citing cases it should never do so where it does not clearly appear that the findings are not supported by any evidence. * * * We think that even a casual perusal of this record should have revealed to the Circuit Court of Appeals that here nothing more was involved than an effort to upset a trial court\'s findings of fact." (Emphasis added.)

In Harrison v. United States⁶ the situation presented to us was much the same as the one now before us. The recanting witness had been "the main prosecuting witness for the government at appellants' trial." He swore, on the motion for new trial, that the evidence given by him was untrue and that appellants never had any interest in or connection with his activities leading to their conviction. We sustained the action of the District Court in overruling the motion based upon this recantation, using this language:

"It seems now to be settled that the order overruling the motion for new trial is a final order from which an appeal will lie. However, the court cannot substitute its judgment on the facts for that of the trial judge; it has no power to try the facts de novo; it can review the record for errors of law only, to determine, among other things, whether the trial judge has abused his discretion * * *.

"The trial judge, from his knowledge of the original trial, from having heard the witnesses testify and observed their demeanor on the stand, was better qualified than is this court to pass on the affidavits. We do not find that the trial judge abused his discretion in overruling the motion for new trial."

(3) To apply those tests to the facts of this case is to perceive readily that there are no grounds for holding that the court below abused its discretion. The reason for sustaining the trial court's findings here are stronger than they were in either of the cases quoted from. There the court below was construing affidavits only, while here it had the advantage of observing the witness for a number of days as he proceeded to unfold the recantation. In considering the recantation, the trial judge proceeded with a fresh personal knowledge of the issues involved and of the impression made by the witnesses, including the recanter, at the trial and at the hearing, and he also had the "feel of the case" in a measure which can never be imparted by a printed transcript. His vantage point gave him a perspective which we could not hope to attain.

As the evidence on the hearing proceeded the trial court was faced with the duty which confronts all triers of fact — to separate the truth from falsehood and to reach conclusions based upon the weight of the evidence. The prompt and decisive action taken by the District Court and the language used point clearly to the fact that the truth of the matter was perfectly clear to it.

The court below had other grounds than the mere observation of Matusow, as he testified at the trial and at the hearing, for concluding that Matusow gave testimony which was substantially true at the trial and that the recantation was pure fabrication. "Environment illuminates the meaning of acts, as context does that of words. What a man is up to may be clear from considering his bare acts by themselves; often it is made clear when we know the reciprocity and sequence of his acts with those of others * * *".⁷ It was proper for the court below to consider that Matusow had little demonstrable motive for lying at the trial, and the basest of all motives, personal gain, for the recantation. A brief look at that feature of the evidence will be found helpful.

(4) A few months after Matusow had testified at the trial appellant's attorney began activities which culminated in Matusow's affidavit of recantation and his testimony at the hearing. Early in August, 1954 — his testimony at the trial had been given in January — the attorney prepared a motion for a new trial upon indirect information he had obtained. Consultation with associate counsel resulted in the conclusion that such an effort then would prove abortive, and a conference of appellant's lawyers was held in New York City on September 13th. Being advised that Matusow had unsuccessfully sought financial assistance in the publication of the book whose outline he had prepared, the lawyers decided to cultivate Matusow by assisting him in the publication of the book. To that end the attorney⁸ procured authority from the officials of Mine-Mill at a meeting in Butte, Montana to spend the money reasonably necessary to accomplish the publication of Matusow's book, the initial advance being fixed at one thousand dollars. The attorney then went in company with appellant to a publisher whose interest Matusow had theretofore sought to enlist, one Kahn, and made the first advance of money to him with instructions that he track down Matusow and arrange for the writing and publication of the book. The publisher was employed to take full charge of the enterprise but was admonished not to...